from the of-course dept

Late yesterday, a superseding indictment was filed in Barrett Brown's case, knocking the charges down to just two, with the main one being that he somehow offered assistance to Jeremy Hammond, who had taken an earlier plea deal for the Stratfor hack. As many people suggested, this new indictment was almost certainly because of a plea deal, which has now been confirmed, as the court also granted a motion to seal the plea deal.

The case against Brown has been something of a travesty from the beginning, as Brown was clearly never involved in the hack, but was involved in reporting on the hack and then involved in some rather misguided public ranting in which he threatened the feds if they came after him. As it became clear that the key part of the government's case hinged on the idea that copying and pasting a link found elsewhere was tantamount to hackking, the DOJ was forced to back down and dismiss most of the charges. Brown has been in jail for many months already, and it's likely that the plea deal will keep him in for a short while longer. Accepting a plea deal is pretty standard in these situations. If you're not familiar with how these things go down, when the DOJ is embarrassed -- as they clearly were in this case -- they almost always pressure defendants into agreeing to some minor plea deal, to save face for themselves. It takes the "risk" away from the defendant, and generally speeds up the process. It's the same sort of thing that happened to Thomas Drake. As we've said before, if you think plea deals like this are an actual admission of guilt, we suggest you watch the documentary Better This World, which shows you how the DOJ deals with cases like this, where they will do basically anything to get people to plead guilty.

from the urls-we-dig-up dept

The space race created a lot of ambitious plans and designs for spaceships that never actually made it into space. While we're entering a new era of a space race, which includes commercial ventures and fragile alliances with certain countries, it's fascinating to look back at some government-funded projects that could have been taken to the next step. Would anyone even consider nuclear-bomb propulsion systems today? Here are just a few plans to ship people to the moon or Mars (or farther!) that are just gathering dust.

from the good-signs dept

Over the years, we've covered story after story after story of horrible practices by music collection societies. These organizations, often (though not always) granted a monopoly in countries to collect and distribute money to musicians, all too often seem to be riddled with corrupt practices, sometimes to extreme levels, such as in Spain, where the management of the collection society was accused of diverting nearly half a billion dollars away from actual artists to "friends" of the directors of the organization. While you would hope that these kinds of stories are rare, it appears that when you give one organization the power to collect and distribute money, temptation to cheat is quite strong. Even in organizations, like those in the US, where the practices are more strictly monitored, and generally considered above board, there are widespread stories of collusion and diverting money from small independent artists to big famous artists. A couple years ago, Jonathan Band put together a whitepaper that went through a very long list of examples, showing the parade of horror stories associated with collection societies around the globe.

It appears that we have one more such story to add to the list, but there's at least some chance that some good will come out of this particular horror story. This one takes place down in Peru. Last time we had checked in on Peru, there were efforts under way to put in place very bad copyright legislation, copying the approach in SOPA to place copyright liability on service providers. It looks like that didn't take -- but what has happened is a scandal with that country's collection society, the Peruvian Association of Authors and Composers (APDAYC).

In recent years, the Copyright Office had accumulated several investigations and even sanctions against the APDAYC, but little has this done to make matters change. In early March, there was confirmation that the APDAYC was applying questionable rules for measuring popularity and distribution of royalties among its associates, which persuaded the Indecopi Copyright Commission to order the temporary suspension of the current directors of the company. In response, the APDAYC called the decision “unfair and illegal” and announced that they were willing to exhaust all possible means of defense and had already filed an appeal which has put the decision on hold.

Apparently this has created something of a scandal in Peru, and may have kickstarted some good copyright reforms focused on increasing user rights (too frequently mislabeled as "limitations and exceptions"). In fact, some of the proposals will put things like fair use on par with the ability to exclude granted by copyright law. Some of the proposals are also about reforming how APDAYC works, but it has also opened up the possibility of these other important public-focused reforms:

As a result, there are currently thirteen bills pending that seek to change different parts of Legislative Decree 822, copyright law of Peru. Some of these bills propose changing specific rules on how collecting societies operate, stemming from the allegations in recent months against the APDAYC. Therefore, there is an intent to change the method of electing its governing board, banning re-elections, avoiding direct and indirect conflicts of interest, and the obligation of having to convincingly demonstrate their legitimate representation of works that they charge for.

However, there are also proposals for even deeper reforms. Some proposals include new exceptions and limitations for domestic purposes, non-profit activities, libraries, small businesses and religious activities. Our copyright law, published in 1996, has been changed very few times and has almost always worked in favor of a more rigid and maximalist system. For the first time in eighteen years, there are many bills that seek to put the rights of users at the same level as those of the authors. Regardless of the outcome , the mere discussion of these issues is very necessary and welcome in a country that is moving forward in many cultural aspects and is eager to have better access to culture and knowledge.

So perhaps yet another story of corruption in a collection society will actually help spur beneficial copyright reform, not just cleaning up questionable practices within such an organization, but also increasing the rights of the public that have been yanked away by over-aggressive copyright law.

from the let-no-stone-be-turned dept

Anyone can make a mistake. The best solution is to acknowledge it, make amends if needed, and move forward, striving to learn from the experience. Far too many entities opt instead for bluster, obfuscation and intimidation, rather than deal with the consequences of their screwup. This is especially true for law enforcement agencies, who often use everything in their power to avoid having to admit anything went wrong, much less take responsibility for it.

A Benedict Avenue resident contends Huron County deputies forced their way into his home Tuesday without a search warrant.

John Collins, who lives in one unit of a triplex home at 114 Benedict Ave., contends deputies got the wrong address when they executed the search warrant. The warrant was for the unit next to his, he said.

The deputies handcuffed him and left him lying on the floor in his unit for 20 minutes after they realized the mistake, Collins said.

Bad enough, but it gets worse.

They tore through his home, he said, after cuffing him and forcing him to the floor facedown. “They searched my whole house, pulled stuff out my closet, broke a couple knick knacks” he said.

One deputy also stepped on his tablet, shattering its screen. Another broke a ceramic decoration that once belonged to his now-deceased son, Collins said...

Two deputies must have realized the mistake, Collins said, because they recognized him from their school days and had to have known he was not the man identified in the search warrant. The deputies went next door, he said. They made contact with the residents there — who were later arrested for drug trafficking.

But six or so other deputies continued searching Collins’ home.

How did the offending deputies rectify the situation after they realized they had both the wrong home and the wrong person? They uncuffed him and left, as if all of the above had never happened.

Collins filed a complaint against the Huron County Sheriff's Department and asked for a copy of the search warrant. This is when the department went on full lockdown with some help from the local judiciary.

Huron County Common Pleas Court Judge Timothy Cardwell issued a secret gag order March 21 to seal the search warrant. The gag order is also secret, Cardwell’s court clerk said after the Register asked for a copy of the order.

Even Collins' complaint itself is now under seal, and the Sheriff's Department is circling the wagons, digging a moat around the circle and filling that moat with blustery statements and unanswered phones.

First, the department flatout denied it had done anything wrong, calling Collins' story a "rumor" that was "highly inaccurate." And, who knows, maybe that would still be up for debate (citizen v. cop and all that), but then the department went and had the complaint sealed. And the warrant. And the gag order itself. It also issued a contradictory statement a few days later.

"We finished a search warrant at 114-1/2 Benedict Ave," he said Thursday. "Our next move then was to check on an individual who may have a warrant in close proximity."

Patrick said deputies "became aware of warrants for an individual in close proximity, which was next door."

Now, the story has changed. According to this narrative, the department supposedly had a warrant for Collins' address but then decided to pursue a different warrant after tossing the first house for twenty minutes while its resident lay face down on the floor, handcuffed. Warrant news must travel really slowly in Huron County, though. The warrant that deputies "became aware of" during their search of the wrong address was issued in 2012.

From that point on, the department (wisely, or at least as close to "wise" as any of this gets) decided to cut the lines of communication, as Matt Westerhold of the Sandusky Register notes in his description of the department's "Plan B."

As Sheriff's Howard's spokesman, make yourself as unavailable and be unfriendly as possible to any reporter who has questions about the inconsistent story you're trying to make sure the public hears.

Still, the department (via Capt. Ted Patrick) continues to insist that it did nothing wrong. But it's completely unwilling to provide any evidence to back that assertion up. Instead, it expects to just push its way through the mess it's created without ever having to explain exactly what went on that night, all with the implicit blessing of a local judge.

from the of-course-they-do dept

Last summer, we wrote about the case of Adel Daoud, an American teenager who was caught in one of the FBI's home grown plots. Even before the whole Snowden situation broke, late in 2012 when the Senate was "debating" (and I use that term loosely) the renewal of the FISA Amendments Act (which created Section 702, the key piece of the PRISM program), Senator Dianne Feinstein strongly fought for the renewal... using Daoud's case as an example of where Section 702 was a key component in stopping terrorism -- saying that it was necessary in "a plot to bomb a downtown Chicago bar." That describes the Daoud case, if by "plot" you mean Daoud and a bunch of undercover FBI agents creating a plan that was never actually going to happen.

Feinstein's admission that the FISA Amendments Act was used in the Daoud case took his lawyers by surprise, since none of the evidence they'd been shown involved that. His lawyers then asked for access to the evidence that was obtained via the FAA. After the Snowden revelations (including how information obtained via FISA is often "laundered" to various law enforcement agencies to keep it out of court), his lawyers got even more aggressive. While their initial shot failed, in January, Judge Sharon Coleman decided that, assuming (as claimed) Daoud's lawyer had security clearance, he should be able to see the FISA related materials. As she noted:

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA
materials to the defense, in this case, the Court finds that the disclosure may be necessary. This
finding is not made lightly, and follows a thorough and careful review of the FISA application
and related materials. The Court finds however that an accurate determination of the legality of
the surveillance is best made in this case as part of an adversarial proceeding. The adversarial
process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.... Indeed, though this Court is capable of making
such a determination, the adversarial process is integral to safeguarding the rights of all citizens,
including those charged with a crime. “The right to the effective assistance of counsel is thus the
right of the accused to require the prosecution’s case to survive the crucible of meaningful
adversarial testing.”

But a court’s preference for the adversarial process—a circumstance
that exists in all litigation—cannot serve as a basis for declaring that
disclosure of FISA materials is “necessary to make an accurate determination
of the legality of the surveillance” under the statute. Congress envisioned
that FISA litigation be handled ex parte, in camera, with disclosure the rare
exception.... Yet
the district court’s reasoning would turn that regime on its head. A court
could always say that an adversarial proceeding would be the “best” way to
determine the legality of the FISA collection. To compel disclosure on that
basis would trivialize FISA’s necessity standard and work a sea change in
FISA litigation.

Right. How dare anyone think that it might be reasonable or sensible for courts to make sure that lawyers representing clients who were involved in plots created by the FBI actually get to see the secret evidence that the FBI got via a FISA court order? Why, due process might break out! And we're the US government. Can't have that!

Furthermore, the DOJ is positive that the courts simply don't understand the security issues, and the judge shouldn't worry about such things, because the smart people in the executive branch can decide for themselves which classified surveillance efforts are appropriate to reveal:

The district court also misjudged the damage to national security that
could result from disclosing the FISA applications and orders, even to cleared
defense counsel under a protective order, as substantiated by declarations
from the Attorney General of the United States and the Acting Assistant
Director of the FBI for Counterterrorism. A “need-to-know” must exist before
classified information may be disclosed, even to those who possess a security
clearance, and that essential prerequisite is present only where disclosure to
defense counsel is “necessary” for a court to adjudicate the legality of the
FISA collection.

When viewed under the correct “necessity” standard, nothing about the
challenged FISA collection justifies the district court’s outlier decision. As the
classified record makes clear, the ex parte process that the statute provides
readily permits an accurate determination that the FISA collection was
lawful, and the defendant’s allegations to the contrary are unfounded. A court
reviewing the applications would have no difficulty determining that they established probable cause to believe the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information.

This all seems... completely bogus. But what makes it especially bogus is that after it came out that the Solicitor General, Donald Verrilli made false statements to the Supreme Court about whether or not defendants in such cases would be told about evidence collected via the FISA process, the DOJ promised that it would start letting defendants know when the FISA process was used in the investigation. Yet, what the DOJ's response here shows, is that even when that's the case, the DOJ will do everything possible to keep the details of what was done via FISA (and whether or not it was legal or appropriate) out of the case.

from the good-news dept

While not entirely unexpected, it's good to see that the Senate Intelligence Committee has finally voted to declassify the key parts of the massive 6,300 page report on the CIA's torture program. As we've been discussing for months, this report, which cost $40 million and has been progressing for years, has been the subject of a pretty big fight from the CIA. It was expected that the Intelligence Committee would approve declassifying the executive summary -- which itself runs 480 pages -- along with "20 findings and conclusions" from the report. It seemed clear that the Democrats on the committee would support declassification (and President Obama has supported it as well), though it was unclear if Republicans would. Yesterday, we noted that Republican Senator Susan Collins announced her support for declassification, while also directly calling the CIA's program "torture," -- something that others on the committee have been afraid to do.

What's a bit surprising is that the vote wasn't even close: 11 to 3 in favor of declassifying the report, and even the highest ranking Republican, Saxby Chambliss voted in favor of declassification, though he did so under what appears to be a bit of a protest. His statement about the vote certainly sounds like sour grapes, rather than strong support:

"Today, I voted in favor of sending a portion of this majority report to the executive branch for declassification. Despite the report’s significant errors, omissions, and assumptions—as well as a lot of cherry-picking of the facts—I want the American people to be able to see it and judge for themselves. In addition, this study has been an expensive, partisan distraction that has hindered the committee’s ability to provide oversight of current national security issues, including NSA reforms, cybersecurity, Russia, Syria, and Afghanistan. I hope we can put this behind us and focus on the national security challenges at hand.

While I agree with some of the conclusions in this report, I take strong exception to the notion that the CIA’s detention and interrogation program did not provide intelligence that was helpful in disrupting terrorist attacks or tracking down Usama bin Ladin. This claim contradicts the factual record and is just flat wrong. Intelligence was gained from detainees in the program, both before and after the application of enhanced interrogation techniques, which played an important role in disrupting terrorist plots and aided our overall counterterrorism operations over the past decade."

Another Republican on the committee, Tom Coburn also called it torture, though he insisted that the CIA did it in "good faith" and voted "present" rather than in favor of declassification.

“I agree that some of the more extreme Enhanced Interrogation Techniques (EITs) could be considered torture, and that in the future this country should not rely on such techniques. Yet, at the time, they had legal sanction. Readers of the report will make their own judgments about how they were implemented. I believe that the CIA acted imperfectly, but in good faith and under great urgency to prevent an attack from a little understood enemy that had brought devastation to our shores."

Feinstein was willing to call it "a stain on our history that must never again be allowed to happen" but refused to call it torture.

Of course, the "fight" is not over yet. There will certainly be a fight over how the declassification is handled and the public won't see the report for many, many months. Senator Mark Udall, who has been a big critic of the intelligence community for a while, has asked that the CIA not handle the declassification itself, knowing that it will over-classify:

"Following today’s historic vote, the president faces what I believe should be a straightforward question. He can defer declassification decisions to the CIA — which has demonstrated an inability to face the truth about this program — or pass this authority to the Director of National Intelligence or hold on to the redaction pen himself. The president needs to understand that the CIA’s clear conflict of interest here requires that the White House step in and manage this process."

Of course, throughout the past few weeks, more and more details of what's in the report have been leaked to the press (including some more leaks today, which we'll try to write about shortly)...

from the and-it-may-have-an-impact dept

The folks at the NSA and their defenders used to use the argument that we were on the verge of a "cyber pearl harbor" in their constant attempts to change laws to give the NSA and others in law enforcement and intelligence more powers to spy on everyone (the argument being that they would do this in order to "protect" us). But... it's beginning to look like the "cyber pearl harbor" wasn't an attack from foreign hackers... but from the NSA itself. Eric Schmidt recently noted that the NSA's actions were a hostile "attack" and it appears that many Americans agree. A new poll found that nearly half of American adults who responded have changed some form of online behavior because of the NSA stories, and they think a lot more carefully about where they go, what they say and what they do online.

We've pointed out (since the Snowden revelations began) that this was going to have a negative impact on the tech industry, but much of the concerns was from overseas users. However, it's clear that it's impacting how Americans view their online habits as well:

When it comes to specific Internet activities, such as email or online banking, this change in behavior translates into a worrying trend for the online economy: over one quarter of respondents (26%) said that, based on what they have learned about secret government surveillance, they are now doing less banking online and less online shopping. This shift in behavior is not good news for companies that rely on sustained or increased use of the Internet for their business model.

Importantly, the study also found that, contrary to the claims of many, the Snowden revelations aren't just being followed by security-obsessed techies. While the general public may not be keeping tabs on all the details, they are getting the basics.

And in case anyone is tempted to think that this is a narrow issue of concern only to news junkies and security geeks, let me be clear: according to this latest survey, 85% of adult Americans are now at least somewhat familiar with the news about secret government surveillance of private citizens’ phone calls, emails, online activity, and so on.

Once again, it appears that the federal government, and the NSA in particular, have created a huge cost for innovation and economic growth, while having almost no real benefit to show for it.

from the well,-duh dept

For many, many years now, we keep hearing law enforcement whine about the "threats" of anonymity and how people would be able to get away with all sorts of criminal activity if they weren't given the ability to track, monitor and tap pretty much every communications technology that has come along. A decade ago the fear was that free and open WiFi was going to be a major boon to criminals who could use it "with no trace." As we pointed out, however, nothing about using an anonymous connection like that means you won't get caught, because criminals have to do a lot of things, many of which will expose them in other ways, without having to tap and track every technological interaction. What's known as good old-fashioned detective work can often track down criminals who used tools to be anonymous -- and for years, we've pointed out many, many, many examples of this.

More recently, law enforcement's concern has been about Tor (which is slightly ironic, given that Tor was created and funded by the US government). The Snowden revelations have shown that, try as they might, the NSA has not had much luck in compromising Tor, and Snowden himself has noted that properly used encryption mostly works.

A recent Wall Street Journal article notes that law enforcement is slowly realizing that perhaps Tor isn't a parade of horribles that must be encumbered with backdoors for wiretapping... after realizing that most criminals more or less reveal themselves by doing something stupid along the way anyway.

But officials are becoming more confident that Tor's shield of anonymity isn't impenetrable.

"There's not a magic way to trace people [through Tor], so we typically capitalize on human error, looking for whatever clues people leave in their wake," said James Kilpatrick, one of the HSI agents who is part of Operation Round Table, a continuing investigation into a Tor-based child-pornography site that has so far resulted in 25 arrests and the identification of more than 250 victims, all children.

This is a good thing. We should want law enforcement to be able to track down criminals -- and it's good to see that they're figuring out ways to do so. But it's important that they should need to do so via basic detective work, rather than by compromising important technology, creating security flaws and opening up all sorts of dangerous unintended consequences.

As with all kinds of new technologies, anonymizing technologies seem to create something of a moral panic among law enforcement types, who then insist those technologies need to be "broken" and backdoored or else criminals could somehow get away with everything. But that's silly. Sooner or later most criminals do other things that reveal who they are, opening them up to investigation and potential indictment, arrest, trial etc.

One hopes that as this realization becomes more widespread, law enforcement and intelligence agencies will finally pull back from constantly trying to expand wiretapping laws that will break important innovations and technologies, but perhaps that's being too optimistic.

from the about-time dept

We've written about Bridgeport many times in the past, as the quintessential example of a "sample troll." The company would acquire the copyrights to certain classic songs (sometimes by very questionable means) and then sue various musicians that sampled those classic songs in some manner. While the whole process has been sickening, the most troubling aspect of Bridgeport has to be the horrible ruling in Bridgeport Music, Inc. v. Dimension Films -- a ruling so ridiculous and problematic that it makes copyright nerds angry to even think about it. The district court said that the sampling in that case was not infringement, but the appeals court ruled that sampling was against the law, and made a bunch of claims that have no basis in copyright law. The most troubling line being:

"Get a license or do not sample. We do not see this as stifling creativity in any significant way."

The specific ruling was about whether or not the infringement should be rejected as being de minimis -- an integral part of copyright law that has made it clear that a tiny bit of copying is fine (note that this is unrelated to fair use). The court's argument against de minimis use was basically nonsensical:

"Even when a small part of a sound recording is sampled, the part taken is something of value."

But whether or not it's "something of value" is not really the issue. Either way, the ruling was a key one in sending chills through the music world when it came to sampling. The court only addressed de minimis use, leaving aside the question of fair use in sampling, but almost no one has been willing to test fair use when it comes to sampling in court. One general theory is that almost everyone generally has "too much to lose" if the ruling comes out in a particular way. The recording industry, of course, tends to fight fair use at every turn, so even though the RIAA labels are the main beneficiaries of widespread sampling, they've had little interest in expanding fair use jurisprudence (and, in fact, constantly attack fair use as a concept).

So it's interesting to see a new sampling case hit the courts -- and one where both de minimis and fair use is being raised (this time, thankfully, not involving Bridgeport). The case involves the estate of Notorious B.I.G. filing for declaratory judgment that a particular sampling effort does not infringe. The estate is happy to admit that the song, "The What," released in 1994, included a "sample" from the song "Can't Say Enough About Mom" by Lee Hutson. But notes that it was clearly both de minimis and fair use:

On information and belief, the Recording merely samples two non-sequential tones from Can't Say Enough, and it has been adapted, modified, and supplemented substantially from its original form. The use has not violated any valid copyright interest held by Defendant, and it is both de minimis and fair use.

The estate is also arguing that the attempts by Hutson to demand licensing fees is barred both by the statute of limitations and laches (i.e., waiting too long to file the claim). The statute of limitations issue comes up a bunch in music copyright cases, and it's a bit of a mess. Technically the statute of limitations is three years, but there's disagreement as to what that three years really means. Is it three years from the date the song was released? Or three years from when someone found out about the alleged infringement? Or, is it just from today going back three years to cover the "most recent three years" of infringement? It's entirely possible that the court might find that the statute of limitations or laches claims are enough to grant declaratory judgment, so there might not be a ruling about the de minimis or fair use issues. But it sure would be nice to have something other than the crazy Bridgeport ruling to point to when it comes to the question of sampling and copyright.

from the why?-because. dept

A few weeks ago, I wrote about the troubling reports that Homeland Security's ICE division had teamed up with domain registrar/hosting company GoDaddy to help censor a Mexican political protest site. GoDaddy had suspended the domain, and when the site's administrators asked why, they were sent information saying that it was from a "Special Agent Homeland Security Investigations." Homeland Security Investigations is part of the new branding for ICE, but it's still the same old ICE. The contact email they were told to reach out to was an @ice.dhs.gov email address.

Given all of this, I filed a Freedom of Information Act request via MuckRock, a service I've used many times in the past to file FOIA requests, without issue. A standard part of doing so, is to ask for a fee waiver. Under FOIA, government agencies can charge for the requested work, but they're supposed to waive the fees if the request is for the public interest or reporting. Basically, the only times they're not supposed to waive the fees is when it's for some sort of (non-reporting) commercial purpose (e.g., a company looking to sell a database that it collects via FOIA requests).

So I was a bit surprised to get back a notice saying that ICE had rejected my fee waiver request. There are very limited reasons for why a government agency can reject such a request, and my request should absolutely have received the waiver. So, I read the waiver rejection letter to find out why, and was... well... a bit surprised to see this:

Specifically, after listing out the six factors, none of which should exclude me from getting the waiver, it says:

Based on my review of your March 4, 2014 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because .

"Because ." Well, that is kind of useless, no? Either way, the rejection is totally bogus, but to claim that the reason is... " ." is sort of the icing on the cake. They also claim that my "fee waiver request has failed to satisfy each of the required factors."

Except that's not true. I actually satisfy all of the factors. Let's take a look.

Whether the subject of the requested records concerns "the operations or activities of the government."

Why, yes it does. I'm trying to find out why the US government requested GoDaddy censor a political protest site.

Whether the disclosure is "likely to contribute" to an understanding of government operations or activities.

Again, yes, of course it will, because I'll be reporting on the results, contributing to the understanding of why ICE felt the need to try to censor political speech in Mexico.

Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understand of the requestor or a narrow segment of interested persons

Again, since the request is for reporting purposes, and I'll be reporting on the results, this should once again be in favor of the waiver.

Whether the contribution to public understanding of government operations or activities will be "significant."

I would think it would be. After all, we're talking about a government agency censoring a foreign website for no clear reason. That seems rather significant.

Whether the requestor has a commercial interest that would be furthered by the requested disclosure

Nope. And, honestly, this is the main one that they normally use to reject fee waivers. It clearly does not apply here.

Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor.

Again, I have no commercial interest here, but a journalistic one. And, for those who claim that there's a "commercial interest" as a news site, that is specifically exempted from the FOIA definitions of commercial interest. The DHS's own rules note that, when it comes to journalists: "a request for records supporting the news-dissemination function of the requestor shall not be considered to be used for commercial use." And, again, I've done a bunch of FOIA requests and never had a single fee waiver rejected before.

In other words, none of the conditions set forth as reasons why ICE can reject my fee waiver request have been met, and yet ICE still rejected the request -- and rather than explain why (perhaps because they can't), they said "because ." Yay, government.

I'll be appealing this decision shortly, but it hardly inspires much confidence in the FOIA department at ICE to actually be of any help at all in this matter.

from the @fidelcastro dept

The Associated Press has quite an astounding story this morning that reads like a Hollywood script (in fact, I'll be amazed if it hasn't been optioned by a movie studio within days) concerning how the US government's humanitarian organization, USAID, secretly built a "Cuban Twitter" called ZunZuneo, via a secret budget that was earmarked for work in Pakistan, and how this effort sought to effectively undermine the Cuban government. This is the kind of thing you'd expect the CIA to work on, not USAID, which has a different reputation. In fact, now that this story is out, it seems likely to undermine USAID actions around the globe, as governments will insist (accurately) that it's difficult to distinguish if its mission is truly humanitarian... or more aligned with intelligence operations.

The story laid out by the Associated Press is long and complicated, full of bumbling moves by various US government officials, who appeared to accidentally build a super-successful social media project in Cuba in near total secrecy... and then freak out about what they were going to do about it. The crazier parts involve how those involved basically sought to set up a shell corporation to run the thing, after it was already built, while also raising money (and making revenue) to separate it from US government funds... all without letting the new management of this shell company know about the origins of the service. As you might imagine, that was a rather delicate operation. How do you have the US government build a successful social network in secret, and then extricate itself without the new management knowing what's going on.

"The ZZ management team will have no knowledge of the true origin of the operation; as far as they know, the platform was established by Mobile Accord," the memo said. "There should be zero doubt in management's mind and no insecurities or concerns about United States Government involvement."

The memo went on to say that the CEO's clean conscience would be "particularly critical when dealing with Cubacel." Sensitive to the high cost of text messages for average Cubans, ZunZuneo negotiated a bulk rate for texts at 4 cents a pop through a Spanish intermediary. Documents show there was hope that an earnest, clueless CEO might be able to persuade Cubacel to back the project.

Mobile Accord considered a dozen candidates from five countries to head the Spanish front company. One of them was Francoise de Valera, a CEO who was vacationing in Dubai when she was approached for an interview. She flew to Barcelona. At the luxury Mandarin Oriental Hotel, she met with Nim Patel, who at the time was Mobile Accord's president. Eberhard had also flown in for the interviews. But she said she couldn't get a straight answer about what they were looking for.

"They talked to me about instant messaging but nothing about Cuba, or the United States," she told the AP in an interview from London.

The story is full of somewhat astounding twists, turns and subplots (seriously, go read the whole thing). Eventually, it appears that once people realized there was no way to separate out the US government, the service just sort of suddenly disappeared, though it was made to look like Cuba was blocking it (the story is a bit unclear if Cuba actually blocked it, but it's clear that the US more or less just decided to walk away and drop the project).

Either way, it's unlikely this story is over. Beyond the implications for USAID workers around the globe right now, officials in the US government are concerned about why USAID appeared to be involved in what looks a lot more like an intelligence operation (the program didn't just let Cubans talk to each other, but also sent them various questions that touched on their views on democracy and the government, and then collected the various answers).

"On the face of it there are several aspects about this that are troubling," said Sen. Patrick Leahy, D-Vt. and chairman of the Appropriations Committee's State Department and foreign operations subcommittee.

"There is the risk to young, unsuspecting Cuban cellphone users who had no idea this was a U.S. government-funded activity. There is the clandestine nature of the program that was not disclosed to the appropriations subcommittee with oversight responsibility. And there is the disturbing fact that it apparently activated shortly after Alan Gross, a USAID subcontractor who was sent to Cuba to help provide citizens access to the Internet, was arrested."

Similarly, the report details how someone on the Senate Foreign Relations Committee was completely kept in the dark about this, and confronted USAID, who "refused to provide operational details." The report also notes concerns that this effort violated the US-European data protection agreement (though, to be fair, EU countries have been insisting that this is violated regularly, in part because it is).

Either way, this is quite a story that's well worth finding some time to read. It would be an entertaining story were it fiction. As a real story, however, it seems like yet another story where US meddling in foreign countries eventually leads to a lot more problems than benefits. Helping to spur greater communication and information sharing among the public is a good thing -- the US State Department has worked on a number of projects to enable more widespread internet access among citizens in various authoritarian countries -- but going so far as to build a service in secret, which is also then used to spy on the individuals in that country, seems to only create additional headaches.

from the awkward dept

The copyright industries' obsession with trying to shoot down piracy at all costs can sometimes cause them to end up shooting themselves in the foot. Here, for example, is a great example from Microsoft, which has recently been fulminating against the dangers of software piracy:

A new study released Tuesday reaffirms what we in Microsoft’s Digital Crimes Unit have seen for some time now -- cybercrime is a booming business for organized crime groups all over the world. The study, conducted by IDC and the National University of Singapore (NUS), reveals that businesses worldwide will spend nearly $500 billion in 2014 to deal with the problems caused by malware on pirated software. Individual consumers, meanwhile, are expected to spend $25 billion and waste 1.2 billion hours this year because of security threats and costly computer fixes.

In 2013 IDC tested pirated software from more than 550 Web and P2P sites or CDs bought in street markets to determine the prevalence of malware in pirated software. In January and February of 2014, the Department of Electrical and Computer Engineering at National University of Singapore conducted a forensic analysis of 203 PCs that were purchased from PC resellers, specialty shops, and PC markets in typical buying situations in 11 countries. Together, this research found the chances of encountering malware in a pirated copy of software is one in three. The chance of encountering malware in a PC purchased with pirated software is more than 60%.

Although the report doesn't say so explicitly, we are clearly dealing with Windows systems here -- computers are referred to throughout as "PCs," never as Macs, and some of the malware is named as "Win32/Enosch.A, Win32/Sality.AT, Win32/Pramro.F," which attack Windows systems exclusively. We can also be pretty sure that none of the infected programs was open source. Why? Because pirating software that is already freely available makes no sense -- and is certainly unlikely to be as profitable as offering black market versions of costly closed-source programs.

Putting this information together -- in order to "Get The Facts" as Microsoft always liked to say -- we arrive at the interesting conclusion that the use of commercial closed-source programs running on Microsoft Windows will cost businesses around $500 billion in 2014 alone because of the wasted time, lost data and reputational damage that will result from associated malware infections.

Assuming the research results are representative of what's happening -- and there's no reason to suppose they aren't -- the obvious conclusion to draw from them for PC users is not just to stop using pirated software (a good idea), but to stop using Windows-based programs too, and to switch to open source applications running on an open source operating system like GNU/Linux. After all, free software is even cheaper than pirated software, and yet rarely has any of the problems identified in the new report.

That's a really useful message for those facing the unwelcome prospect of paying their share of $500 billion to deal with the multiple problems associated with the Windows platform, but probably not the one Microsoft had in mind when it sponsored the research.

from the following-the-nsa's-example dept

We recently wrote about the emergence of NSA-like spying platforms for mobile devices. Ostensibly designed and marketed for worried mothers and/or employers to monitor their children and/or employees, reports instead indicate a more nefarious use employed by jealous men and women looking to spy on their would-be significant others. In other words, technology somewhat similar to what the NSA employs generally is being used quite specifically by the unhinged, who appear to have taken our spy agencies' example to heart.

MobiStealth, the product that received such rave reviews online, was used by convicted murderer Simon Gittany to read his girlfriend Lisa Harnum's text messages, one of several forms of control and surveillance he subjected her to. The product's website encourages potential buyers to ''get the answers you deserve''. When Gittany learned of Ms Harnum's plan to escape the abusive relationship in July 2011, he threw her off the balcony of their 15th-floor Sydney apartment.

Down Under, at least, it would appear this wasn't an isolated incident.

In a Victorian study last year, 97 per cent of domestic violence workers reported that perpetrators were using mobile technologies to monitor and harass women in domestic situations. Two-thirds of the 46 victims interviewed said they were made to feel like they were being watched or tracked, yet less than half told somebody about it.

While that first number is certainly shocking, I'm actually far more intrigued by the second set of statistics. Less than half of domestic violence victims who felt like they were being tracked on their mobile devices didn't say anything to anyone? This reeks of resignation when what might be needed most is a good dose of recalcitrance. While it may be difficult to directly point the blame for these domestic violence perps at intrusively spying government agencies, I wonder if the same could be said for the victims' reluctance to do anything about being spied on. If we have to accept a world in which our own governments, or foreign governments, are going to spy on us, perhaps it makes us less likely to push back against spying that is of a domestic nature?

I'm not sure, but the way this technology is progressing and the price at which it is offered likely means that stories for this kind of thing are in their infancy stages.

Mobile phone spyware costs as little as $6 a month and needs to be installed physically on a phone once for it to operate without the owner's knowledge. Shane Johnson, a spokesman for Sydney company Spousebusters, said it sold ''hundreds'' of GPS trackers, hidden cameras, listening bugs and spyware programs a year. The company asks no questions of purchasers and takes no responsibility for people using legal products to commit illegal acts.

And the perps can claim all along they're only following the NSA's example? Oh, this should work out well...

from the don't-mess-with-dojinshi dept

Over a decade ago, we first wrote about how manga and anime in Japan was thriving in part due to the rise of fan fiction (even for-profit fan fiction) and the fact that the lawyers for official publications didn't try to shut it down. Instead, they realized that such fan fiction was often quite good for the original, official versions of the products. Over the years since then, we've had a bunch of similar stories. Rather than trying to hit fans with copyright infringement claims, publishers were willing to embrace those fans and it helped everyone in the industry.

However, many in the fan fiction -- dojinshi -- market in Japan are now worried that the Trans Pacific Partnership (TPP) agreement may now kill off that happy, mutually beneficial (even if technically infringing) setup. At issue is that the TPP may require more stringent enforcement of copyrights, even when the copyright holder has no problem with what's happening.

Usami and other creators of fan fiction, however, could face the possibility of legal prosecution as copyright violators in the future, depending on the outcome of TPP negotiations.

Some countries are apparently demanding that Japan clamp down on knock-off and pirated works in the intellectual property arena, even if the copyright holder does not object to it.

The more cynical among you might point to the fact that the dojinshi market's proof that copyright maximalism can be counterproductive, and allowing free flowing "infringement" among fans creating derivative works, so bothers some people that they feel the need to kill off such an important counter-example to the maximalist narrative. However, those involved in the space in Japan recognize that not enforcing copyright law has been better for everyone:

Many experts say the Japanese anime and manga subculture has thrived due in part to a tacit understanding in society that fan fiction should be accepted to a certain extent to allow room for amateurs to shine.

The recent Comic Market is one indication of the level of demand for dojinshi and other works of fan fiction. A total of 520,000 visitors attended--many of them teenagers or in their 20s--while about 35,000 groups sold dojinshi and other related goods.

Some are even worried that it might extend to cracking down on cosplay:

“The creation of derivative works has helped the expansion of the market (for anime and manga), a rich gray zone built based on a gentleman’s agreement between original artists and amateur creators,” [lawyer Kansaku Fukui] said.

If the copyright law was enforced without a formal complaint, not only dojinshi, but also parodied creations of movies and literature, could be subject to a crackdown, Fukui said.

He added that even cosplayers could be a target, especially if their costumes were elaborately made and if a video of the costume play was uploaded on the Internet.

“If people think about the possibility of coming under questioning, they might cower,” he said.

I would imagine that the various negotiators of the TPP probably aren't all that familiar with anime, manga or cosplay -- but pissing off fans of all three probably isn't particularly wise.